The ability to have children has caused a lot of stress to marriages over the years, sometimes even tearing the couple apart. Since the first test tube baby in 1978, medical advances involving in vitro fertilization (IVF) have enabled thousands to overcome obstacles to start families. The process involves using sperm to fertilize the egg and then freeze the conceived embryos.
The fate of these embryos can be a custody issue if the couple chooses to file for divorce. Even if they originally signed a contract saying what would happen to the embryos, there may be a change of heart. This can lead to a custody fight over the fate of the frozen embryos, such as the high profile one between "Modern Family" star Sophia Vergara and her former boyfriend Nick Loeb.
What the courts think
Because reproductive medicine has advanced so far in recent years, the courts have had a hard time keeping up. The courts will look at the issue of the embryos as a one involving the contract signed by the couple at the time the embryos were created at the fertility clinic. If one parent wants to implant the embryo, as is the case with Nick Loeb, some courts will hesitate to enforce an agreement if one party doesn't want to be a parent, which in this case was Vergara. Other courts, however, are sympathetic if the woman grows infertile as she ages or the man sees it as his only option for starting a family. It breaks down to a dispute between the parental and custody rights of the father and the mother.
Advances may eliminate issue
Recent advances have now made it possible to freeze the egg and the sperm separately and then combine the two during the IVF procedure. This eliminates the dilemma of using egg and sperm combination with a former spouse. Other new options will likely present themselves as well. With the fast pace of medical advances, it's wise to speak with an experienced Board-certified Family Law expert attorney who understands family law issues and specific custody matters, to help ensure that skilled legal counsel supports a parent's rights.